Judge Allyne Ross

A state appeals court upheld Garcia-Villegas’ 2008 conviction by jury of murder, criminal weapon’s possession, and evidence tampering. It rejected his assertion that the prosecutor’s improper summation denied him a fair trial. It also rejected his claim that admission into evidence of the victim’s autopsy report violated the confrontation clause. In addition to denying his confrontation clause claim on the merits, the state appeals court found neither claim preserved for review. District court denied Garcia-Villegas 28 USC §2254 habeas relief. In addition to rejecting his claim of ineffective assistance of counsel, the court deemed itself procedurally barred—under New York Criminal Procedure Law §470.05(2)—from reviewing his claim that admission of the autopsy report violated his Sixth Amendment confrontation right. The state panel’s explicit invocation of §470.05(2)’s procedural bar constituted an “independent” state ground. The court further noted that Garcia-Villegas’ claim of ineffective assistance of counsel—to which he attributed the autopsy report’s admission—was first raised in his motion to vacate judgment under Criminal Procedure Law §440.10, rather than on direct appeal.